Wisconsin Appeals Court Reverses Exclusion of Experts’ Testimony in Medical Malpractice Action

Circuit court excluded witness testimony of four experts related to injuries caused to a baby during birth.  Court of Appeals reversed the opinion and remanded for further proceedings.

Facts: This case (Unity Bayer v. Brian D. Dobbins, M.D. – Wisconsin Court of Appeals – July 6th, 2016) involves injuries sustained by baby Unity Bayer during birth.  After the delivery, Unity was diagnosed with a permanent right brachial plexus injury, which left her with limited ability to use her right arm and hand.  The Bayers filed suit against Dr. Brian D. Dobbins, the doctor that delivered Unity.  They contend that Dobbins used excessive traction during the delivery, which caused the injuries.  Dobbins asserted that the injury was caused by maternal forces of labor.  In order to prove his case Dobbins hired four expert witnesses: Dr. Dwight Rouse and Dr. Robert DeMott (Obstetrics & Gynecology (OB/GYN) Expert Witnesses), Dr. Mark Scher (Neurology Expert Witness), and Michelle Grimm (Biomechanics Expert Witness).

These witnesses were going to testify that the injuries sustained by Unity Bayer were the result of maternal forces and not that of Dobbins.  The Bayers filed a motion to exclude the testimony of all the experts stating that the medical literature that was used to support the experts’ testimony was unreliable and did not support the proposition that maternal forces of labor can cause permanent brachial plexus injury.  The court agreed and excluded the testimony.  Dobbins filed an appeal to the present court.

Discussion: The circuit court, applying the Daubet principles to this case, concluded that the circuit court erred when it excluded the testimony of Dobbin’s experts.   The circuit ruled that the circuit erroneously concluded that the scientific literature which the defense experts relied on did not establish that maternal forces can cause permanent, but not temporary brachial plexus injuries.  The court outlined three errors that the circuit court made in this respect.

First, the circuit court’s opinion that there is a distinction between temporary and permanent brachial plexus injuries (a reason stated in the exclusionary hearing) was not supported by any scientific authority.  Second, the circuit court did not address any articles cited by Dobbins, some of which showed that forces of labor can cause permanent brachial plexus injuries.  Third, the circuit court did not address any of Grimm’s research and opinions, which would have shown that maternal forces alone can cause permanent brachial plexus injuries.

In addition, it would have been impossible to study the effect of maternal forces on feta brachial injuries (as the Bayers argued as a criticism of Grimm’s research) because of ethical considerations.  More generally, the court maintained that these types of arguments go to the weight of the testimony, not the admissibility.  The court also pointed to case law from other jurisdictions that support the conclusion that the circuit court erred when it excluded the testimony regarding the maternal forces theory.

Last, the court stated that this is a case where the scientific literature is divided  on whether maternal forces of labor can cause permanent brachial plexus injuries.  That, however, does not mean that testimony about that theory violates the Daubert standard.

Conclusion: The Court of Appeals reversed the opinion of the circuit court which excluded the testimony of four expert witnesses.

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